112 So. 422 | Ala. | 1927
Lead Opinion
This is an action for personal injuries received by the plaintiff in .a collision, on a grade crossing, between an automobile operated by the plaintiff and a railroad car constituting a train of eight cars, being handled by a switching crew of the defendant. The collision occurred in the daytime, at the intersection of First avenue and Thirty-Second street in the city of Birmingham. The complaint consists of two counts, the first ascribing the injury to the negligence of the defendant’s servants ,in such sort as to embrace initial simple negligence, as well as negligence after the discovery of peril; the second count ascribes the injury to wantonness on the part of the defendant’s servants. The pleas were not guilty and contributory negligence, pleaded in short, by consent.
It is admitted by the plaintiff that he did not stop and look and listen before attempting to cross the railroad tracks, and that he only looked once in the direction of the train of cars at a place about 75 feet distant from the crossing, at which place he could not see the train on account of obstructions in the path of his vision; that he did not discover the approach of the train until the front wheels of the automobile reached the first rail, and the lead car was then in such proximity to him that it collided with the rear end of the automobile before it 'cleared the crossing, the contact being from • the rear door back. It is not a matter left in doubt by the evidence that, if the plaintiff had stopped and looked and listened immediately before attempting to cross over the railroad tracks, he would have discovered the approaching train, and under the repeated decisions of this court, in failing to do so he was guilty of negligence proximately contributing to his injury, and cannot recover for antecedent simple negligence on the part of the-persons operating the train, if, in fact, they were guilty of such negligence. A. C. L. Ry. Co. v. Jones, 202 Ala. 222, 80 So. 44; Central of Ga. Ry. Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Hines v. Cooper, 205 Ala. 70, 88 So. 133.
Charges 7, 11, and 22- asserted correct propositions of law applicable to the case, and should have been given.
The crew in charge of the train was engaged in switching, and consisted of the engineer, brakeman, foreman, and flagman. The train consisted of eight cars attached to the locomotive equipped with air brakes. The evidence shows that the engineer and brakeman, from their respective positions, could not see the street crossing; that the engineer, in the movement of the train, was governed by signals transmitted to him by the foreman from his position on top of the-lead ear through the brakeman who was located on the fourth or fifth car from the engine. The defendant’s evidence tended to-show that Barnes, the foreman of the crew, was at his place on top of the lead car to receive signals and transmit them to the engineer for the movement of the train; that the flagman, Johnson, was at his place on the-crossing engaged in opening the switch and flagging the traffic, and giving signals to Barnes for the movement of the train. While the evidence offered by the plaintiff waá in conflict with that of the defendant in respect to the positions of Barnes and Johnson, and tended to show that there was no one at the-crossing or on top of the cars, this conflict is without influence in determining the issue of negligence after the discovery of peril,' for,, if neither Barnes nor Johnson was in a position to observe the approach of the automobile driven by the plaintiff, it is clear that' plaintiff’s peril was not discovered in time to-prevent the collision.
The testimony of Johnson and Barnes-shows, or at least tends to show, that they observed the approach of the automobile driven by the plaintiff as it crossed the viaduct,, two blocks from the crossing; that it continued its course without checking its speed until it reached the crossing and came in collision with the train, and, when this testimony is viewed in the light of the other evidence as to the nature of the crossing, the-.
The evidence shows that the crossing in question was a much used and “populous” crossing, a fact, as some of the evidence tended to show, known to those in charge of the train; that on the occasion of the accident a number of automobiles were traveling along First avenue at rapid rate of speed, in both directions, and some of the testimony tended to show that the cars attached to the engine were pushed across the avenue at 15 miles per hour, without signals or warning, and without a lookout on top of the cars, or flagman preceding them, and, under the authorities, the question of wajntonness was for the jury. A. G. S. R. Co. v. Guest, 136 Ala. 348, 34 So. 968; A. G. S. R. R. Co. v. Guest, 144 Ala. 373, 39 So. 654.
Charges 1, 2, 3, 4, 16, 18, 19, as well as the unnumbered charges asserting that, if the train crew “did their best in their honest judgment to prevent the accident,” plaintiff should not recover, were properly refused. L. & N. R. R. Co. v. Young, supra. For the errors pointed out, the judgment must be reversed.
Reversed and remanded.
Lead Opinion
This is an action for personal injuries received by the plaintiff in a collision, on a grade crossing, between an automobile operated by the plaintiff and a railroad car constituting a train of eight cars, being handled by a switching crew of the defendant. The collision occurred in the daytime, at the intersection of First avenue and Thirty-Second street in the city of Birmingham. The complaint consists of two counts, the first ascribing the injury to the negligence of the defendant's servants in such sort as to embrace initial simple negligence, as well as negligence after the discovery of peril; the second count ascribes the injury to wantonness on the part of the defendant's servants. The pleas were not guilty and contributory negligence, pleaded in short, by consent.
It is admitted by the plaintiff that he did not stop and look and listen before attempting to cross the railroad tracks, and that he only looked once in the direction of the train of cars at a place about 75 feet distant from the crossing, at which place he could not see the train on account of obstructions in the path of his vision; that he did not discover the approach of the train until the front wheels of the automobile reached the first rail, and the lead car was then in such proximity to him that it collided with the rear end of the automobile before it cleared the crossing, the contact being from the rear door back. It is not a matter left in doubt by the evidence that, if the plaintiff had stopped and looked and listened immediately before attempting to cross over the railroad tracks, he would have discovered the approaching train, and under the repeated decisions of this court, in failing to do so he was guilty of negligence proximately contributing to his injury, and cannot recover for antecedent simple negligence on the part of the persons operating the train, if, in fact, they were guilty of such negligence. A. C. L. Ry. Co. v. Jones,
Charges 7, 11, and 22 asserted correct propositions of law applicable to the case, and should have been given.
The crew in charge of the train was engaged in switching, and consisted of the engineer, brakeman, foreman, and flagman. The train consisted of eight cars attached to the locomotive equipped with air brakes. The evidence shows that the engineer and brakeman, from their respective positions, could not see the street crossing; that the engineer, in the movement of the train, was governed by signals transmitted to him by the foreman from his position on top of the lead car through the brakeman who was located on the fourth or fifth car from the engine. The defendant's evidence tended to show that Barnes, the foreman of the crew, was at his place on top of the lead car to receive signals and transmit them to the engineer for the movement of the train; that the flagman, Johnson, was at his place on the crossing engaged in opening the switch and flagging the traffic, and giving signals to Barnes for the movement of the train. While the evidence offered by the plaintiff was in conflict with that of the defendant in respect to the positions of Barnes and Johnson, and tended to show that there was no one at the crossing or on top of the cars, this conflict is without influence in determining the issue of negligence after the discovery of peril, for, if neither Barnes nor Johnson was in a position to observe the approach of the automobile driven by the plaintiff, it is clear that plaintiff's peril was not discovered in time to prevent the collision.
The testimony of Johnson and Barnes shows, or at least tends to show, that they observed the approach of the automobile driven by the plaintiff as it crossed the viaduct, two blocks from the crossing; that it continued its course without checking its speed until it reached the crossing and came in collision with the train, and, when this testimony is viewed in the light of the other evidence as to the nature of the crossing, the *151
condition of the traffic, at the time, and the circumstances surrounding and leading up to the accident, it cannot be affirmed as a matter of law that the flagman and foreman, one or both, did not discover the plaintiff's peril in time to have given a stop signal to the engineer, which would have prevented the collision; and that the failure to act more promptly in this respect, under the circumstances, was not negligence proximately causing plaintiff's injuries. Birmingham Southern R. Co. v. Harrison,
The evidence shows that the crossing in question was a much used and "populous" crossing, a fact, as some of the evidence tended to show, known to those in charge of the train; that on the occasion of the accident a number of automobiles were traveling along First avenue at rapid rate of speed, in both directions, and some of the testimony tended to show that the cars attached to the engine were pushed across the avenue at 15 miles per hour, without signals or warning, and without a lookout on top of the cars, or flagman preceding them, and, under the authorities, the question of wantonness was for the jury. A. G. S. R. Co. v. Guest,
Charges 1, 2, 3, 4, 16, 18, 19, as well as the unnumbered charges asserting that, if the train crew "did their best in their honest judgment to prevent the accident," plaintiff should not recover, were properly refused. L. N. R. R. Co. v. Young, supra. For the errors pointed out, the judgment must be reversed.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
Under the decisions of this court reversible error will not be predicated on the giving or refusal of such charges. Conway v. Robinson,
Charge 11 was without hypothesis on a belief of the evidence, and its refusal was not reversible error. Walls v. Decatur Fertilizer Co.,
We are still of opinion that the court erred in refusing charge 7. This charge in no way deals with or affected the issue of wantonness or subsequent negligence, and the giving of this charge would have simplified the real issues in the case by the elimination of the issue of initial simple negligence.
Application overruled.
Rehearing
On Rehearing.
Counsel for appellee, in their brief on application for rehearing, point out that charge 22, refused to the defendant, uses the word “believe,” while the correct and appropriate term expressing the degree of conviction essential to establish an issue of fact is that the jury must be “reasonably satisfied” ; a criticism not pointed out in briefs and argument on the original submission.
Under the decisions of this court reversible error will not be predicated on the giving or refusal of such charges. Conway v. Robinson, 113 So. 531;
Charge 11 was without hypothesis on a belief of the evidence, and its refusal was not reversible error. Walls v. Decatur Fertilizer Co., 215 Ala. 426, 111 So. 214.
We are still of opinion that the court erred in refusing charge 7. This charge in no way deals with or 'affected the issue of wantonness or subsequent negligence, and the giving of this charge would have simplified the real issues in the ease by the elimination of the issue of initial simple negligence.
Application overruled.
Post, p. 495.